In a victory for advocates of transparent government, a Sacramento judge ruled last Friday that Marine Life Protection Act Initiative bodies are state agencies that cannot deny lawful requests for public records.
“The Blue Ribbon Task Force (BRTF) and the Science Advisory Team (SAT) do not appear to be private” entities, or bodies that are independent from state government in any real sense. Indeed, they are creations of law and of the actions of state agencies,” Sacramento Superior Court Judge Patrick Marlette ruled.
Marlette ordered the two MLPAI boards to release requested records within 10 days to plaintiff Robert C. Fletcher, a sport fishing activist from San Diego. The lawsuit was paid for by sportfishing organizations.
“We are trying to shine a good government light on this process that has lacked from the beginning,” said George Osborn, who represents the American Sportfishing Association.
The California Attorney General”s office, which was defending the MLPAI from the Public Records Act request, declined to appeal the verdict.
About the MLPAI
Privately funded and operated through a unique legal contract with the state, the Marine Life Protection Act Initiative gathers public input and prepares preliminary Marine Protected Areas for the California Fish and Game Commission.
The scientific basis for the MLPAI”s arrays was created by its Science Advisory Team out of a DFG master plan which was created after the passage of the 1999 Marine Life Protection Act.
The MLPAI utilizes three other groups appointed by state officials. The Regional Stakeholders Group is composed of locals who create initial maps, which are commented on by the SAT before being delivered to the Blue Ribbon Task Force, the overarching MLPAI group, which also makes final recommendations to the commission.
A fourth group, the Statewide Interests Group, serves a purely advisory role. That seems to put to rest six months of controversy over whether the MLPAI was required to follow California state laws — with a “yes.”
Background of ruling
David Gurney of Fort Bragg was arrested in April while attempting to film a working group meeting of the Regional Stakeholders Group. Gurney (and California open government law attorneys quoted by this newspaper) said the arrest and a photography ban imposed by MLPAI staff violated the Bagley-Keene Open Government Act.
MLPAI Executive Director Ken Wiseman said he had obtained an oral opinion from the Department of Fish and Game legal staff that said the public-private agency was not subject to state laws. But Wiseman said the MLPAI would voluntarily follow state laws and the photography ban was removed.
But the MLPAI was later attacked for failing to prepare agendas ahead of time and other possible violations of open government rules.
Now, MLPAI”s voluntary compliance with state law is called into question by the failure of the Blue Ribbon Task Force and Science Advisory Team to respond in any way to California Public Records Act requests made to the two MLPAI boards on Feb. 19 by Fletcher. He sought 41 categories of records but got no response.
“As of the date of filing the petition, which was on May 28, 2010, petitioner had not received any response from the BRTF or the (SAT),” the judge”s ruling said.
Fletcher made similar requests of the Department of Fish and Game, the Fish and Game Commission and the Resources Agency. Those three full-fledged state agencies legally responded to his requests within the required 10 days.
Osborn said his clients plan more litigation, but he couldn”t say yet what that suit would be about.
“This particular lawsuit is the first step in correcting an injustice foisted upon the people and natural resources of the state of California,” said Osborn.
He said the MLPAI is ineffective because it avoids regulating the most damaging ocean uses, from wave energy to power plants that suck in cold water full of life and eject warm, dead water.
“The MLPAI was supposed to be about ecosystem protection but how can it achieve that goal when it ignores the effects of sewage, agricultural chemicals, oil terminals?” Osborn said. “The MLPAI team, has consistently ignored real threats to the marine environment and instead targeted recreational fishing.”
Osborn says the ruling will have far-reaching impacts for the MLPAI process and for the larger issue of privatization of public processes.
“It would be great if this was used as a precedent, if other people used what we did as a template,” he said.
“For example, there is another similar process in the Delta, which seems intent on draining the Delta to the detriment of salmon, so that we can grow cotton,” said Osborn. “It wouldn”t hurt to shine a light on what is happening behind the scenes in a lot of places.”
